The court also revisited the question of when a search should trigger Fourth Amendment protections and found that TSA screeners are more like federal meat inspectors than police officers.
“[W]e are sympathetic to the concerns this may raise as a matter of policy, particularly given the nature and frequency of TSOs’ contact with the flying public,” the opinion says, using an abbreviation for “transportation security officer.”
In a dissenting opinion, however, Judge Thomas L. Ambro argued that what the TSA does every day at checkpoints around the country is not much different from what police do when they conduct traffic stops and pat down the drivers to see whether they are carrying weapons.
Ambro also noted that the majority’s opinion would bar passengers from bringing legal claims even in the most extreme cases, such as when TSA officers at Denver International Airport were accused of manipulating security procedures so that they could grope “attractive” male passengers.
“Their opinion leaves several plaintiffs without a remedy, even if a TSO assaults them, wrongfully detains them, or fabricates criminal charges against them,” Ambro wrote. “I do not believe this is what Congress intended.”
The case was brought by Nadine Pellegrino, who was arrested after a physical confrontation with TSA agents at Philadelphia International Airport in 2006.
Pellegrino and her husband were on their way home to Florida when she was asked to step aside with her luggage for further checkpoint screening after passing through a metal detector, the opinion says. She objected to the TSA agent’s treatment of her and her luggage, however, and asked for a private screening. She was then led into an examination room with three female agents.
Pellegrino objected to how this screening was handled, too, saying it was unnecessarily rough, as well as invasive because it extended to her credit cards, mobile phone and lipstick. She accused the agents of damaging some of her things, at one point calling them “bitches” and threatening to report them to superiors, the court’s opinion says.
Then, after the screening was finished and the agents told her she could go, Pellegrino began collecting her luggage and knocked two of the agents with the bags, according to the TSA — a charge Pellegrino denied. The TSA agents summoned police to arrest her.
Pellegrino was eventually charged with 10 counts of felony aggravated assault, simple assault, making terroristic threats and “possession of instruments of a crime.” She was acquitted, at least in part because of rulings and circumstances that limited the trial testimony that the TSA agents could present, the opinion says.
After her claim to the TSA for $951,200 was denied, Pellegrino filed suit in 2009. The District Court granted relief for property damage but said the TSA agents could not be held individually liable for their conduct.
The court’s reasoning hinged on whether TSA agents should be considered government employees or law enforcement officials. Under the Tort Claims Act, the federal government and its employees have sovereign immunity that shields them from civil or criminal liability except in certain limited circumstances. These include wrongful behavior such as assault and false arrest if committed by an “investigative or law enforcement officer” — officers who are presumed to know when they have probable cause or proper authority for their actions. The ability to sue such officers came about amid outrage after rogue federal agents carried out “no-knock” drug searches in Illinois in 1973.
In Judge Cheryl Ann Krause’s majority opinion, the appeals court ruled that TSA screeners conduct only “administrative” searches such as those carried out at checkpoints targeting everyone — in contrast to the search of a single person that is triggered by suspicious behavior and must be carried out by law enforcement.
The court also noted that when the TSA was created, the initial job description given to its employees at airport checkpoints was simply “screener.” This was later switched to “transportation security officer” only as a kind of morale booster. In contrast, actual federal law enforcement officers are given the power to execute arrests and carry firearms, the court found.
“[W]e are persuaded that the phrase ‘investigative or law enforcement officers’ refers only to criminal law enforcement officers, not to federal employees who conduct only administrative searches,” the opinion says, citing previous rulings, language in the federal statute and its legislative history. And the court acknowledged that its holding means passengers “will have very limited legal redress.”
But the court also suggested that it is up to Congress to decide whether that should change.